By George C. Christie, James B. Duke Professor of Law, Duke University School of Law
In Europe, speech involving matters that are not generally known, even if the speech concerns events that took place in an area open to public view, has been successfully challenged as an invasion of privacy if the defendant was unable to show that the speech in question concerned a matter of legitimate public interest or contributed “to a debate of general interest to society.” What speech meets these criteria is for the courts to determine. That the public may have a great interest in the subject matter involved in the challenged speech is not by itself enough. Whether courts actually have the capacity to decide on their own what is a matter of "legitimate" public interest is one of the major themes discussed in my new book Philosopher Kings? The Adjudication of Conflicting Human Rights and Social Values."
In the United States, the balance is tilted the other way since freedom of speech is the preferred value. Recent developments, however, contain a hint that a court-administered regime of what is acceptable speech has some support in the United States as well. In Snyder v. Phelps, the United States Supreme Court, quite properly in my judgment, upheld the right of members of the Westboro Baptist Church to picket near the funeral of a Marine killed in Iraq. The signs they displayed to express their contempt for the military’s tolerance of homosexuality were certainly vulgar and offensive, but Chief Justice Roberts, writing for the Court, declared that the issue involved was a matter of public concern and thus protected by the First Amendment.
Many American observers, however, have preferred the approach taken in the dissenting opinion of Justice Alito, who expressed the view that, if the plaintiff could show that he suffered severe emotional distress because of the grossly tasteless signs displayed by the demonstrators, the plaintiff should be able to recover under the common law tort of intentional infliction of emotional distress. Indeed, the approach taken by Chief Justice Roberts leaves open the possibility that vulgar hateful speech on matters that a court determines do not concern a matter of public concern is actionable. That suggests the possible adoption of something like the method used in Europe to decide conflicts between speech and privacy. Under the European approach, a court must balance the value of the challenged speech against the value of the other interests involved in the case before the court. These other interests can range from the desire of the plaintiff to preserve his anonymity to the judicially determined legitimacy of the public interest in the subject matter of the speech in question.
I disagree. In Europe,